Case 5:14-cv-00665-F Document 551 Filed 11/18/21 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

RICHARD GLOSSIP, et al., )

)
Plaintiffs, )
)
) Case No. CIV-14-665-F
)
RANDY CHANDLER, et al., )
)
Defendants. )

EMERGENCY MOTION FOR PRELIMINARY

INJUNCTION ON BEHALF OF PLAINTIFF JULIUS
JONES AND OTHER RELIGIOUS OBJECTOR
PLAINTIFFS ON THE SUPPLEMENTAL RECORD
OF THE EXECUTION OF JOHN GRANT

Harry P. Cohen (admitted pro hac vice) Jon M. Sands

Michael K. Robles (admitted pro hac vice) Federal Public Defender District of
James K. Stronski (admitted pro hac vice) Arizona
CROWELL & MORING LLP Dale A. Baich (OH Bar No.
590 Madison Avenue 0025070)
New York, NY 10022 Jennifer M. Moreno (CA Bar No.
244967)
Emma V. Rolls, OBA # 18820 Michael W. Lieberman, OBA #32694
Office of the Federal Defender 850 West Adams Street, Suite 201
for the Western District of Oklahoma Phoenix, Arizona 85007
215 Dean A. McGee Ave., Suite 707
Oklahoma City, OK 73102

COUNSEL FOR JULIUS JONES

November 18, 2021

 Case 5:14-cv-00665-F Document 551 Filed 11/18/21 Page 2 of 21

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................... 1
II. BACKGROUND AND NEW EVIDENCE ............................................................. 3
III. ARGUMENT ........................................................................................................... 8
A. Legal Standard ............................................................................................... 8
B. The Religious Objector Plaintiffs Now Show A Likelihood of
Success on the Merits on Count II ................................................................ 9
C. The Other Factors Warrant Preliminary Relief. .......................................... 14
IV. CONCLUSION ...................................................................................................... 15

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TABLE OF AUTHORITIES

Page(s)

Cases

Attorney General of Oklahoma v. Tyson Foods, Inc.,

565 F.3d 769 (10th Cir. 2009) ..................................................................................... 14

Baze v. Rees,
553 U.S. 35 (2008) ................................................................................................... 9, 12

Bucklew v. Precythe,
139 S. Ct. 1112 (2019) ........................................................................................... 11, 12

Gomez v. U.S. Dist. Ct. for N. Dist. of Cal.,

966 F.2d 460 (9th Cir. 1992) ....................................................................................... 15

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013) ................................................................................... 14

In re Kemmler,
136 U.S. 436 (1890) ....................................................................................................... 9

In re Ohio Execution Protocol Litig.,

840 F. Supp. 2d 1044 (S.D. Ohio 2012) ...................................................................... 14

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ........................................................................................................... 8

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I. INTRODUCTION

The Religious Objector Plaintiffs (except John Grant who has been executed)

renew their motion for preliminary injunction based on new, supplemental evidence of the

botched John Grant execution. This motion is brought on an emergency basis as Julius

Jones faces execution November 18, 2021 at 4 pm Central Time. Notwithstanding the

Oklahoma Pardon and Parole Board’s September 13, 2021 recommendation that Governor

Stitt commute Mr. Jones’s death sentence to life with the possibility of parole, and its

November 1, 2021 recommendation of clemency by the Oklahoma Pardon and Parole

Board, Governor Stitt has not acted as of 8 AM Central Time. This motion is being filed

now admittedly on the day of Julius Jones’s execution. Nonetheless, it is timely under

circumstances where the Governor has not acted on the clemency recommendation that,

if accepted, would have obviated the need for this motion being filed seeking emergency

relief today as it relates to Julius Jones.

The Religious Objector Plaintiffs previously moved for a preliminary injunction

before the execution of John Grant, which motion was denied by this Court, followed by

an emergency stay granted by the Tenth Circuit. That opinion held that this Court had

abused its discretion in finding no likelihood of success on the merits on the second prong

of the Glossip test. The Supreme Court vacated without opinion or explanation as to

whether its vacatur was based on a prong of the Glossip test or other grounds. On

November 12, 2021, the Tenth Circuit affirmed this Court’s denial of the prior preliminary

injunction in an opinion holding that, on the then-existing record, this Court had not

abused its discretion finding that the showing was not sufficient on the first prong of

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Glossip. That said, the Tenth Circuit in footnote 2 of that opinion limited its ruling to the

first prong of Glossip on the record that existed at that time. It did not address the second

prong of Glossip or otherwise address or change its prior ruling that this Court’s failure to

find the showing met on the second prong was an abuse of discretion.

The Religious Objector Plaintiffs respectfully submit that this Court now can and

should find that the second prong of Glossip has been satisfied and that the new

supplemental evidence on the first prong of Glossip now meets the burden and supports

granting preliminary injunctive relief. A status quo injunction is requested to stay the

execution of Julius Jones now scheduled for the 4 PM Central on November 18, 2021.

The supplemental evidence offered here goes directly to establishing a likelihood

of success on the first prong of Glossip and on this basis this Court may and should now

enter injunctive relief. This new supplemental evidence includes the sworn declarations

of witnesses to John Grant’s execution and the testimony of medical experts who have

reviewed this testimony, including one medical doctor who has conducted, and is currently

evaluating evidence from, an autopsy on John Grant. This evidence provides compelling

evidence that the Execution Protocol and the use of midazolam, as well as the cursory

consciousness checks done under the Protocol, pose a serious and substantial risk of severe

suffering and pain to prisoners. Prong one is thus now satisfied on this new, supplemental

record and this Court should find prong two met, as the Tenth Circuit held that this Court’s

prior ruling on the preliminary injunction was an abuse of discretion for not finding that

prong met.

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II. BACKGROUND AND NEW EVIDENCE

This case has an extended procedural history well known to the Court, including

the recently-referenced motion for preliminary injunction that this motion seeks to

supplement based on the evidence of John Grant’s execution.

The New Supplemental Evidence of John Grant’s Pain and Suffering

Julie Gardner, an investigator with the Capital Habeas Unit of the Office of the

Federal Public Defender in Oklahoma City, which office represented John Marion Grant,

witnessed Mr. Grant’s October 28, 2021 execution. (See Ex. 1, Declaration of Julie Gardner

dated November 14, 2021 (“Gardner Dec.”) at ¶ 1). Additionally, Meghan LeFrancois, an

Assistant Federal Public Defender with the same office also witnessed the execution. (See

Ex. 2, Declaration of Meghan LeFrancois (“LeFrancois Dec.”) at ¶ 1).

Before John Grant' s execution, Ms. Gardner had witnessed the execution of a

federal inmate and five executions by the State of Oklahoma. All six of these lethal

injection executions involved barbiturates (pentobarbital and thiopental) as an anesthetic

instead of the sedative midazolam. Although she had considerable experience witnessing

lethal injection executions, this was the first she witnessed with the inferior non-anesthetic

drug. (See Gardner Dec. at ¶ 2). The substantial suffering apparent and observed in John

Grant’s midazolam execution were not present in the executions she witnessed that used

barbiturates; based on this stark and shocking evidence of suffering, Ms. Gardner

expressed the hope she would not have to observe another execution using midazolam.

(Id.)

Ms. Gardner and Ms. LeFrancois sat about 9 feet from Mr. Grant and were positioned

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such that they were looking over at him from an angle where they could see his left side. (See

Gardner Dec. at ¶ 3; See LeFrancois Dec. ¶ 5). They observed the restraint on his left wrist

and the IV insertion point near the bend of his left arm. (See Gardner Dec. at ¶ 3). A

Department of Corrections official began reading the warrant immediately upon the

opening of the curtains and after Mr. Grant began talking over the official, the microphone

was turned off. (See Gardner Dec. at ¶ 4) After this official moved to stand at John Grant’s

feet, Ms. Gardner started timing the execution with a stop watch. (Id.) Mr. Grant initially

raised his head and looked over his right shoulder back towards where the drugs were being

remotely administered. About 30 to 40 seconds after the execution had begun as recorded

on Ms. Gardner’s stop watch, she began to see fluid flow through the tube attached to John

Grant’s left arm. At this point Mr. Grant was looking at the ceiling. (See Gardner Dec. at ¶

5.).

Suddenly, it appeared that the first drug–midazolam–hit and Mr. Grant’s chest

expanded and he took a deep breath and let it out. The breaths that followed the first deep

breath were more violent and irregular. (See Gardner Dec. at ¶ 6.) This also was described

by an Associated Press reporter, Sean Murphy, as full-body convulsions that numbered

about two dozen, and which descriptions Ms. Gardner also endorsed. (See Gardner Dec.

at ¶ 13) Ms. Gardner described this violent movement as a heaving chest and gasping for

air. Ms. LeFrancois testified that Mr. Grant appeared to be struggling to breathe. (See

LeFrancois Dec. at ¶ 8). During these convulsions and gasping for breath, Mr. Grant’s

chest was heaving and his head was moving while his mouth moved looking like he was

gasping for air. (See Gardner Dec. at ¶ 6).

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While Mr. Grant was convulsing and heaving and gasping for air, he began to

vomit. (Id.) This began about one and one-half minutes after the convulsions and gasping

or struggling to breathe had begun. (See LeFrancois Dec. at ¶ 7). Mr. Grant was strapped

to the gurney on his back and his face and neck were covered in vomit. (See Gardner Dec.

at ¶ 6). Ms Gardner saw the vomit around his mouth bubble up and pop as the air from his lungs

was being forced out. Then as he took air back in, the vomit would sink back down around

his mouth. To Ms. Gardner, it appeared like he was drowning in his own vomit. (Id.)

During this time, at one point, Mr. Grant moved his back dramatically off the gurney. (See

LeFrancois Dec. at ¶ 8).

Ms. Gardner reports after about four minutes of these observations, a person

wearing a mask entered the chamber with a towel and appeared to wipe/scoop the vomit out

of his mouth. This person proceeded to wipe the vomit off of his face and neck in an effort

to clean him up. As this person was doing this, a second person wearing a blue wrap over the

head that also covered the mouth, came out to help clean the vomit. They both appeared to

be nervous and hurried. The second person’s hands were visibly shaking as that person was

wiping off Mr. Grant's face. (See Gardner Dec. at ¶ 7). Following entry and exit of these

execution personnel, Mr. Grant's chest continued to heave, he continued to gasp for air, and

he continued to vomit. As he exhaled, vomit would fling out of his mouth. The two

individuals came back out to clean him off again. Eventually, Mr. Grant’s

breathing started to slow down and his chest was not heaving as much and he no longer

was vomiting but the vomit that was around his mouth and on his lips appeared foamy.

(See Gardner Dec. at ¶ 8).

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At about the six and one-half or seven minutes mark into the execution, the second

person who had come in to remove vomit entered the room again to do what turned out to

be a quick and apparently quite cursory consciousness check. As this person entered the

room, Mr. Grant raised his head and turned it towards his left and towards where Ms.

Gardner and Ms. LeFrancois were seated. He also made a movement to raise and move

his left shoulder against the restraints that strapped him down. (See Gardner Dec. at ¶ 9).

The person doing the consciousness check was the same person who earlier entered the

execution chamber with visibly shaking hands to clean vomit off Mr. Grant a few minutes

earlier. This conscious check consisted of merely taking hold of Mr. Grant’s face and

turning it back to where it was centered and away from Ms. Gardner and Ms. LeFrancois.

(Id.) The person doing the consciousness check then wiped off the foamy vomit from Mr.

Grant’s mouth and removed Mr. Grant’s glasses and wiped around his eyes and then exited

the room. (Id.) This was the full extent of the “consciousness check.” Notwithstanding

the apparently voluntary movements of Mr. Grant to move his head to the left toward the

observers and to try to move against the restraints, which Ms. Gardner reports in her

declaration, it was announced over the intercom that "the inmate is unconscious." The stop

watch was still at about the seven-minute mark after the completion of this quick

“consciousness check.” (Gardner Dec. at ¶ 10). At this point, Mr. Grant was still breathing

but his breathing and movement was no longer violent. (Id.)

After it was announced that the “inmate is unconscious,” Ms. Gardner reports

seeing fluids moving through the IV line. Within a couple of seconds, Mr. Grant’s left check

fluttered and his breath “puffed out” over his lips, which Ms. Gardner observed as Mr. Grant

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then was facing toward his right. Mr. Gardner’s breathing slowed and all movements

eventually stopped. (See Gardner Dec. at ¶ 10). The person who conducted the cursory

“consciousness check” entered the room again and pushed his fingers into Mr. Grant's

jugular on his left side. He then appeared to squeeze Mr. Grant's throat with his thumb on

Mr. Grant's right side. He left the room. This apparently was how it was determined that

Mr. Grant was dead. Seconds later Director Crow came in an announced that the execution

was over at 4:21. (See Gardner Dec. at ¶ 11). It took 12 minutes and 40 seconds for the

administration of these lethal injections drugs to cause the death of Mr. Grant as recorded

by stop watch by Ms. Gardner. (See Gardner Dec. at ¶ 11).

Dr. Michael Weinberger, a Professor at Columbia University Medical School, and

a practicing Board-Certified Anesthesiologist and also a Board-Certified Pain Medicine

Specialist has provided opinions in an expert report and will testify at trial that the

Protocol, including its use of Midazolam and the consciousness check, among other

problems, put prisoners at a substantial risk of severe pain and suffering. (See Ex. 3,

Declaration of Michael Weinberger, M.D., dated November 15, 2021 (“Weinberger Dec.”

at ¶¶ 2-3). Dr. Weinberger reviewed the eyewitness accounts of John Grant’s execution,

and concluded that they provide corroborative evidence of his opinions in this case. (See

Weinberger Dec. at ¶ 5). As Dr. Weinberger explains, the movements described by these

eyewitnesses may have been voluntary and in view of these apparently voluntary

movements of the head and the shoulder at about the time of the “consciousness check”,

the consciousness check as performed in this case was wholly inadequate. (See

Weinberger Dec. at ¶ 6). The consciousness check described by the witnesses, as explained

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by Dr. Weinberger, also appear inadequate to assess depth of sedation to assure the

prisoner insensate and under adequate general anesthesia before administering the second

and third drugs. (See Weinberger Dec. at ¶ 7). Consequently, it is reasonable to conclude

based on this inadequate consciousness check that John Grant was at substantial risk of

suffering severe pain and suffering from the second and third drugs. Any other prisoners

under this Protocol, including this inadequate consciousness check, would also be at

substantial risk of severe pain and suffering as well. (See Weinberger Dec. at ¶ 7).

Dr. Joe Cohen is a pathologist who has begun to evaluate the autopsy of John Grant,

including conducting his own examination, and he is in the process of waiting to receive

information from the Defendants’ autopsy. Dr. Cohen also submits a declaration

supporting the opinion that the Protocol as administered in the John Grant execution

subjects prisoners to a substantial risk of severe suffering, full-body convulsions and

movements consistent with air hunger. (See Ex. 4, Declaration of Joe Cohen, M.D. dated

November 18, 2021 at ¶ 9).

III. ARGUMENT

A. Legal Standard

To be entitled to a preliminary injunction, generally, a party should demonstrate that

(1) they will likely succeed on the merits of their claim(s); (2) without preliminary relief,

they will likely suffer irreparable harm; (3) “the balance of equities tips in [their] favor”;

and (4) “an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 20 (2008). The Religious Objector Plaintiffs now meet this standard to justify

the short, limited status quo injunction needed here to prevent any further executions under

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this Protocol until this Court finally resolves the Eighth Amendment challenge at the

February 2022 trial.

Focusing now on Count II, which this Court has decided requires trial in a few short

months, the new evidence of the botched execution of John Grant supports, along with the

other evidence before this Court, a short preliminary injunction until the resolution of the

February trial to ensure that no other prisoners are subject to this flawed Execution Protocol

until the constitutionality of it is finally decided by this Court.1

B. The Religious Objector Plaintiffs Now Show A Likelihood of Success on

the Merits on Count II

The Eighth Amendment forbids the Government, in carrying out a death sentence,

from inflicting pain beyond that necessary to end the condemned prisoner’s life. In re

Kemmler, 136 U.S. 436, 447 (1890). “Punishments are cruel when they involve torture or

a lingering death . . . something more than the mere extinguishment of life.” Id.; see also

Baze v. Rees, 553 U.S. 35, 50 (2008) (execution violates the Eighth Amendment if it

presents a “substantial risk of serious harm”).

1
Yesterday, some members of the Oklahoma Pardon and Parole expressed similar
concerns about the execution of Mr. Grant, and suggested that no executions take place
until after the trial scheduled for February 2022. Kelly Doyle said, “Executions going the
way they are currently going down. I don’t feel comfortable making a [pardon or parole]
decision.” Feliz Romero, “Pardon & Parole Board Recommends Clemency to Bigler
Stouffer Due to Concerns with State’s Execution Protocol.” [Link], Nov. 17, 2021,
[Link]
recommends-clemency-to-bigler-stouffer-due-to-concerns-with-states-execution-
protocol. Larry Morris said, “I am dumbfounded that we are even dealing with any of
these cases, because they would be exposed to the same drug cocktail.” Id. Morris also
said, “That whole trial that is scheduled to happen in February regarding those other
inmates has to do with the drug cocktail and whether or not it works, and whether or not
it exposes an inmate to cruel and unusual punishment[.]” Id.

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The Court addressed Count II in its August 11th Order on summary judgment,

analyzing the parties’ arguments in the context of a two-prong test: (1) whether “the state’s

method presents ‘a substantial risk of severe pain’”; and (2) whether “the alternative

method of execution the prisoner is obliged to propose [is] ‘feasible and readily

implemented,’ and [is] one that ‘the State has refused to adopt without a legitimate

penological reason.’” (Doc. 449 at 6-7). With respect to the first prong, the Court declined

to grant summary judgment against Plaintiffs, finding the Plaintiffs’ attacks on the

protocol’s safeguards supported by “credible expert criticism.” (Id. at 14-15). The

showings previously made on the first prong coupled with the evidence of the severe

problems with the Execution Protocol as evidenced by John Grant’s execution, now

support a finding that the first prong is met.

Based on the new supplemental record of evidence of the pain and suffering of John

Grant, this Court should conclude that the Religious Objector Plaintiffs have made a

showing of a likelihood of success on the first prong of Glossip and specifically, that: (i)

that before the consciousness check, that there is a substantial risk that the prisoner is

sensate as evidenced by voluntary movements in the execution chamber at the six and one-

half to seven minute mark and immediately before the so-called “consciousness check”;

(ii) that violent convulsions, gasping for breath, vomiting and apparent difficulty breathing

through the vomit and asphyxiation all evidence severe pain and the extreme suffering

caused by suffocation and air hunger; and (iii) that the consciousness check was and is a

cursory, unreliable and inadequate as actually implemented by the personnel in the

execution of John Grant. These new eyewitness accounts and the opinions of Dr. Michael

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Weinberger and Dr. Joe Cohen based on these accounts all support the conclusion that the

Protocol, including the consciousness check as administered in the Protocol, is wholly

inadequate and subjects prisoners to a substantial risk of severe pain suffering.

Regarding the second prong, the Court found that fact issues further precluded

granting summary judgment as to each of the four alternatives identified in the Third

Amended Complaint. (Id. at 23-26). Despite the foregoing findings, the Court did grant

summary judgment as to the Religious Objector Plaintiffs, because they “declined to

proffer an alternative for carrying out their sentence of death.” (Id. at 18-19). The Religious

Objector Plaintiffs each declined to proffer an alternative on moral, ethical, and/or religious

grounds prohibiting them from being complicit in their own deaths in a way that they

believe would be akin to suicide or assisting suicide. (See e.g., Doc. 425-18 at 75, 123;

Doc. 325 at 58-62). The Court found that this decision was “fatal to these plaintiffs’ Eighth

Amendment claims.” (Doc. 449 at 19). As support, the Court cited the Supreme Court’ s

decision in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), that “Glossip expressly held that

identifying an available alternative is ‘a requirement of all Eight Amendment method-of-

execution claims’ alleging cruel pain” and “failure to identify an alternative [is] a

dispositive shortcoming.” (ECF No. 449 at 16-17 (emphasis in original)).

The Supreme Court, however, did not hold in any of these decisions that a prisoner

must proffer an available alternative “for use in carrying out his death sentence,” as the

Court claimed in its Order. (ECF No. 449 at 7-8 (emphasis in original)). Consequently, the

Supreme Court has also never addressed whether requiring a plaintiff to select his own

method of execution violates his religious liberties. Most importantly, the Supreme Court

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precedent is directed to the pleading of an alternative for comparison to the challenged

method. It is not about prisoner choice and this Court’s additional requirement that the

prisoner be given a choice and be forced to make a choice would be unworkable –

potentially compelling a state to develop multiple different protocols for different

prisoners.

In Bucklew, the Supreme Court addressed its holdings in Baze and Glossip, and

described the standard governing all Eighth Amendment method-of-execution claims, as

follows:

To establish that a State’s chosen method cruelly “superadds” pain to

the death sentence, a prisoner must show a feasible and readily implemented
alternative method that would significantly reduce a substantial risk of severe
pain and that the State has refused to adopt without a legitimate penological
reason.

Bucklew, 139 S. Ct. at 1117 (internal citations omitted)(emphasis in original). Neither here

nor anywhere else in Bucklew (or Baze or Glossip) does the Supreme Court decide or even

consider whether this standard requires that the alternative method be identified

specifically for use in the prisoner’s own execution. Such a question was never at issue in

any of the three cases.

In Bucklew, the Supreme Court recognized that “distinguishing between

constitutionally permissible and impermissible degrees of pain is a necessarily comparative

exercise,” and that Mr. Bucklew’s failure to identify an alternative procedure all together

was a “dispositive shortcoming” of his complaint. Id. at 1117, 1121. In the present case,

there is no such “dispositive shortcoming,” because counsel for each of the Religious

Objector Plaintiffs signed on to the Third Amended Complaint, which—unlike in

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Bucklew—identified four alternative methods of execution for the “necessarily

comparative exercise” described by the Supreme Court. (See Doc. 325, ¶ 114). The

Religious Objector Plaintiffs, thus, satisfied the legal standard set out in Baze, Glossip, and

Bucklew, identifying an available alternative, but simply declining to endorse a specific

option for their own executions. This Court appears to be reading into Bucklew a

requirement that simply is not there. The Religious Objector Plaintiffs are likely to succeed

in overturning the Court’s grant of summary judgment, as it rests upon a clear

misinterpretation of Supreme Court precedent.

Moreover, as the Court found that serious questions of fact precluded granting

summary judgment as to each of the four alternative methods of execution (Doc. 449 at 23-

26), the Religious Objector Plaintiffs have the same triable issues of fact as the remaining

plaintiffs. This Court also should now take direction on the showing made on the second

prong of Glossip from the opinion of the Tenth Circuit granting an emergency stay before

the execution of John Grant. The Tenth Circuit held with respect to the second prong of

Glossip that this Court had abused its discretion finding it had not been met. The Supreme

Court’s vacatur of that opinion and stay was without opinion and the subsequent Tenth

Circuit affirmance of this Court’s denial of the prior preliminary injunction motion was

decided strictly on the first prong of Glossip. This Court should follow the Tenth Circuit’s

decision finding grounds for the limited stay sought here at least on the second prong. And

this Court can and should find a likelihood of success on the merits on the first prong now

based on the supplemental evidence from the botched execution of John Grant.

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C. The Other Factors Warrant Preliminary Relief.

The Religious Objector Plaintiffs have shown that they will suffer irreparable harm.

If Defendants are permitted to carry out their executions before the Religious Objector

Plaintiffs’ cases are completed in this Court and subject to review on appeal, they will be

executed while at the same time being foreclosed any appellate review of the serious

constitutional questions they have raised on this record. There is nothing more final and

irreversible than death. If the Religious Objector Plaintiffs are unconstitutionally

executed, the injury is irreparable.

The issuance of a preliminary injunction is also in the public interest. Attorney

General of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 788 (10th Cir. 2009). “[I]t is

always in the public interest to prevent the violation of a party’s constitutional rights.”

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013). Indeed, “the

public interest has never been and could never be served by rushing to judgment at the

expense of a condemned inmate’s constitutional rights.” In re Ohio Execution Protocol

Litig., 840 F. Supp. 2d 1044, 1059 (S.D. Ohio 2012) (citation omitted).

The balance of equities tips in favor of the Religious Objector Plaintiffs. The

Plaintiffs promptly raised and litigated their claims once the new lethal injection protocol

was issued, and a schedule was set and relied upon by Plaintiffs with the understanding

that executions would not proceed until the case was complete and subject to review on

appeal. Moreover, the Religious Objector Plaintiffs sought relief from this Court,

including the prior motion for preliminary injunction, promptly after the Court of Appeals’

October 15, 2021 decision and the October 19, 2021 confirmation by counsel for

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Defendants that the State would not agree to withdraw the execution dates. Moreover, the

Religious Objector Plaintiffs have brought this motion for preliminary injunction on the

new, supplemental evidence of the John Grant execution as soon as possible after that

execution and before Plaintiffs and their experts have had full access to the autopsy of

John Grant. It has been brought even before the Governor has acted on the Julius Jones

Pardon and Parole Board recommendation of clemency and is necessitated at this time by

that inaction.

Viewed in the context of the State’s lengthy delay in developing its new protocol,

the short stay sought here will have little adverse effect on the State’s interest and will

ensure that the State does not perform an unconstitutional execution. See Gomez v. U.S.

Dist. Ct. for N. Dist. of Cal., 966 F.2d 460, 462 (9th Cir. 1992) (Noonan, J. dissenting

from grant of writ of mandate) (“The state will get its man in the end. In contrast, if persons

are put to death in a manner that is determined to be cruel, they suffer injury that can never

be undone, and the Constitution suffers an injury that can never be repaired.”). Here,

equity favors the issuance of the limited preliminary injunction that will prevent the

Religious Objector Plaintiffs from being executed before final judgment is entered on their

claims and before they can seek appellate review of their novel, substantial and serious

claims.

IV. CONCLUSION

The Religious Objector Plaintiffs respectfully request that this Court grant a

preliminary injunction on the new and supplemental record provided by the botched

execution of John Grant, which supports the likelihood of success on the first prong of

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Glossip, coupled with the direction provided by the Tenth Circuit’s opinion granting an

emergency stay on the proper construction and application of the second Glossip prong in

this case.

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Dated: November 18, 2021 Respectfully submitted,

s/ Michael Lieberman
Jon M. Sands
Federal Public Defender District of Arizona

Dale A. Baich (OH Bar No. 0025070)

Jennifer M. Moreno (CA Bar No.
244967)
Michael W. Lieberman, OBA #32694
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
Telephone: (602) 382-2816
dale_baich@[Link]
jennifer_moreno@[Link]
michael_lieberman@[Link]

Harry P. Cohen (admitted pro hac vice)

Michael K. Robles (admitted pro hac
vice)
James K. Stronski (admitted pro hac
vice) CROWELL & MORING LLP
590 Madison Avenue
New York, NY 10022
Telephone: (212) 223-4000
hcohen@[Link]
mrobles@[Link]
jstronski@[Link]

Emma V. Rolls, OBA # 18820

Office of the Federal Public Defender for
the Western District of Oklahoma
215 Dean A. McGee Ave., Suite 707
Oklahoma City, OK 73102
Telephone: (405) 609-5975
emma_rolls@[Link]

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 Case 5:14-cv-00665-F Document 551 Filed 11/18/21 Page 21 of 21

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of November, 2021, I electronically transmitted
a copy of this Emergency Motion for Preliminary Injunction on Behalf of Plaintiff Julius
Jones and Other Religious Objector Plaintiffs in The Supplemental Record of The
Execution of John Grant to the Clerk of Court using the ECF System for filing and
transmittal of Notice of Electronic Filing to all counsel of record who are registered
participants of the Electronic Case Filing System.

s/ Michael Lieberman

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